Van der Westhuizen v The State

The appellant, Gerhard van der Westhuizen, was convicted of fraud in the Special Commercial Crimes Court (Regional Court, Pretoria) and sentenced to five years’ imprisonment under s 276(1)(i) of the Criminal Procedure Act 51 of 1977. He noted an appeal to the High Court but failed to comply with procedural rules: he did not file heads of argument, did not appear on the appeal date, and took several months thereafter to apply for condonation. His appeal was struck off the roll, and his subsequent application for condonation was refused by the High Court. He then exercised an automatic right of appeal to the Supreme Court of Appeal against the refusal of condonation. The underlying conviction arose from his role as National Contracts Manager for Dunlop Tyres, where he opened a ‘secret’ account ostensibly for a National Intelligence Service client, enabling unauthorised purchasers to obtain tyres at a 45% government discount, thereby defrauding Dunlop.

The appeal against the refusal of condonation was dismissed. The order of the High Court dismissing the appeal was set aside as incompetent.

The case reaffirms the principles governing applications for condonation in South African appellate procedure, particularly the interrelationship between explanation for delay and prospects of success. It underscores the limited circumstances in which an appellate court may interfere with a lower court’s exercise of discretion and confirms that persistent inaction and poor explanations will not be condoned, especially where there are no prospects of success.